RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01427
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Automated Logistics Specialist) medically separated for asthma.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  “Asthma, moderate to severe, persistent” was forwarded to the Physical Evaluation Board (PEB) as not meeting retention standards and “allergic rhinosinusitis” as meeting retention standards, IAW AR 40-501.  The CI was also evaluated by psychiatry and diagnosed with mild posttraumatic stress disorder (PTSD) determined to be medically acceptable.  The condition was not forwarded to the PEB.  The Informal PEB adjudicated “asthma, mild, persistent” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The rhinosinusitis condition was characterized as “medically acceptable” (constituting a de facto determination as not unfitting in the opinion of the Board).  The CI withdrew an initial appeal for a Formal PEB and was medically separated.

CI CONTENTION:  The applicant makes no specific contention in his application.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Service IPEB – Dated 20041203	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Asthma	6602	0%	Asthma	6602	10%	STR	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 0	
Rating:  0%	Rating:  10%	
* Derived from VA Rating Decision (VARD) dated 20050224 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Asthma.  There are numerous service treatment records (STR) entries for the emergence and treatment of asthma which resulted in the CI’s evacuation from theater in April 2004 and which included interim hospitalization and evaluation in Landstuhl, Germany.  The narrative summary (NARSUM) was dated 26 July 2004, 4 days after return to CONUS (7 months pre-separation).  The MEB had been initiated and a preliminary work-up completed at Landstuhl.  The NARSUM documented recent completion of a Prednisone taper (systemic corticosteroid) and concurrent use of Advair (inhalational steroid/bronchodilator combination), Singulair (oral bronchodilator), and Albuterol (rescue inhaled bronchodilator) as needed.  This regimen was corroborated by the intake note at the time of medical evacuation.  There are three subsequent STR entries which address medication use in the interval between the NARSUM and separation:  First, although the MEB DD Form 2807-1, Report of Medical History, (5 months pre-separation) listed no entries under current medications, the CI affirmed that he had “been prescribed or used an inhaler” and the examiner documented the development of weight gain “using prednisone and inhaler” (although not specifying concurrent use of the medications).  Second, there is a clinic note from October 2004 (4 months pre-separation) which lists daily Singulair and Albuterol as needed.  Third, the applicant stated in his DD Form 2697, Report of Medical Assessment, (3 weeks pre-separation, and after the Informal PEB) that he was taking Singulair and Advair.  Conversely, the PEB’s DA Form 199 (2 months pre-separation) stated, “Review of pharmacy records revealed that soldier is taking no medications for his asthma.”  There are two Service pulmonary function test (PFT) evaluations in evidence (10 months and 8 months pre-separation).  These show post-bronchodilator FEV1 (% predicted) measurements of 104% and 102% respectively and FEV1/FVC ratios of 83% and 77%.  VA general and pulmonary specialty Compensation and Pension (C&P) evaluations and PFT measurements were all performed on the same day, 6 months post-separation.  The general exam documented, “He is currently not on any medications for his asthma and he is not on prednisone.”  The concurrent pulmonary exam documented, “The patient currently takes Albuterol three to four times a day.  He does not take an inhaled steroid but does have one available for p.r.n. [as needed] use.”  The daily use of albuterol was also repeated later in the exam.  Both VA examiners documented that records were unavailable for review.  The VA PFT measurements were FEV1 of 92.6% and FEV1/FVC of 83%.  

The Board directed attention to its rating recommendation based on the above evidence.  The VASRD provides rating guidance for asthma based on the number and severity of clinical exacerbations; the type and the frequency of medications used to treat the condition; and objective PFT findings.  The applicable §4.97 rating criteria for 6602 (asthma, bronchial) for the ratings under consideration are excerpted below: 
		FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 
			percent, or; daily inhalational or oral bronchodilator therapy, 
			or; inhalational anti-inflammatory medication………………….……...30  
		FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 
			percent, or; intermittent inhalational or oral bronchodilator therapy…10 
The PEB’s 0% rating was premised on the assumption that the CI did not meet the medication criteria elaborated for either the 10% or the 30% rating and was accurate in that the Service PFT measurements (cited in the PEB’s DA Form 199) did not meet the minimum 10% criteria.  The initial VARD was based solely on STR evidence.  It referenced the medications from the NARSUM; it did not cite the PFT results and did not provide a clear rationale for its 10% determination.  The VARD dated 20 September 2005, which followed the post-separation C&P evaluations described above, continued the 10% rating, referencing “intermittent inhalational therapy.”  The §4.97 criteria for any rating higher than 30% were not met, and the evidence does not support the minimum 10% rating for PFT criteria.  Members deliberated, however, whether the medication criteria for a 30% rating were met.  

The NARSUM medication history supports the 30% criteria, but its timing detracts greatly from its probative value for rating at separation.  The Board discussed the probative value of the STR entries (cited above) in the interval between the NARSUM and separation.  The examiner conducting the MEB history and physical presumably had access to medication records, and listed no medications in that block.  Furthermore, the mere listing of current medications in the cited outpatient notes does not verify that the CI had obtained or had used the medication.  The most compelling evidence arguing against a conclusion that the 30% medication criteria are supported is the forthright statement on the DA Form 199 that the CI was taking no asthma medications as documented in STR pharmacy records.  Although the Board does not have the source pharmacy evidence available for review, it is not reasonable to question the validity of the formal and specific statement to that effect by the PEB.  It is likewise not reasonable to speculate that the CI was obtaining asthma medications from a civilian source while on active duty, especially with no reference to such in the file, and he did not engage VA care until after separation.  Furthermore, the CI was given an explicit opportunity during his initial appeal to produce evidence of his medication use; and, did not do so, withdrawing his appeal.  The post-separation C&P evidence regarding the 30% criteria is equivocal and contradictory and uncorroborated since records were unavailable to the examiners.  The subsequent VARD, presumably with access to the full file (which would have arguably included VA pharmacy evidence), also did not find support for the 30% criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the asthma condition.

Contended PTSD Condition.  A single STR entry in June 2004 documented a referral to Behavioral Health without elaboration, but there were no follow-up treatment notes.  An entry from a psychiatrist in October 2004 documented situational anxiety/dysphoria [mood disturbance] regarding the future and stated “psychiatric condition is medically acceptable and does not require an addendum for MEB.”  The examiner entered an Axis I diagnosis of “chronic PTSD (mild).”  A brief formal addendum to the NARSUM was forwarded expressing this diagnosis and assessment.  The Post-Deployment Health Assessment in February 2005 recorded inconclusive responses to questions regarding PTSD and depression.  The psychiatric profile was S1 throughout service.  The commander’s performance statement made no mention of psychiatric diagnosis or issues.  There was no claim for PTSD or other MH condition on the initial post-separation VARD.

The Board directed attention to its rating recommendation based on the above evidence.  Its first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge whether a diagnosis was changed to the disadvantage of the applicant or whether a diagnosis of PTSD was changed or unfairly eliminated.  In this case a pre-separation diagnosis of PTSD was made and the condition was addressed by the MEB via an addendum; but, the condition was not forwarded to the PEB for formal adjudication.  

Although, ideally, the PTSD condition would have been forwarded on the MEB’s DA Form 3947 (presumably as medically acceptable based on specialty opinion), it is readily conceded that the decision to not do so was a reasonable judgment call on the part of the MEB physician.  There is no indication that the CI was desirous of such action.  Although a diagnosis of PTSD was established, the lack of PEB adjudication notwithstanding, all members agreed that there would be insufficient evidence for recommending it as unfitting and eligible for rating; noting the S1 profile, the lack of indication by the commander that there were MH limitations on performance, and the lack of any performance-based evidence in the record suggesting that such limitations existed.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of PTSD as a diagnosis for disability rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the asthma condition and IAW VASRD §4.97, the Board by majority vote recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended PTSD condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB																		

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150018445 (PD201301427)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) majority recommendation, minority opinion and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I reject the Board’s recommendation and accept the Board’s minority opinion to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA

MINORITY OPINION: 

It is agreed with the majority that the NARSUM medication evidence suffers in probative value because of its remoteness from separation and proximity to a more acute phase of the asthma condition; but, the minority member differs with the majority judgment that the NARSUM was insufficiently corroborated by subsequent evidence from the STR.  The latter contains various entries after the NARSUM noting that the CI’s current medications included bronchodilators (Singulair and Albuterol) and inhaled anti-inflammatory medication (Advair); which is the same regimen documented in the NARSUM and specified as 30% criteria by VASRD §4.97.  Every clinic note in the STR which documents current medications, from the time of the CI’s return to CONUS until his separation, lists these medications.  On the DD Form 2807 (history) the box for “current medications” was left blank (as cited in these proceedings); but, on the DD Form 2697 (medical assessment), 3 weeks prior to separation, the CI reported the use of both Singulair and Advair.  The VA pulmonologist would be expected to have provided a directed and reliable medication history; and, twice documented a daily dependence on inhaled bronchodilator (albuterol) as well as intermittent use of an inhalational anti-inflammatory (Advair).  Although this was 6 months after separation, it encompasses the baseline spectrum of the acuity of the disease being rated; and, concession of either daily bronchodilator or intermittent anti-inflammatory (Board precedence and formal guidance) would yield a 30% rating under §4.97.

The majority position in this case rests heavily (if not exclusively) on the PEB’s DA Form 199 documentation that the Service pharmacy records did not reflect dispensing of asthma medications.  The minority member cannot share a conclusion that this one statement, which itself is conceded without the source evidence, carries the probative value to outweigh the several indicators to the contrary from source evidence which is available; evidence that is derived directly from the CI’s providers and himself.  The minority conclusion, that the probative weight of the PEB’s evidence is insufficient to overcome the competing evidence, is greatly supported by the fact that the scale rests on reasonable doubt.

The Secretary is respectfully urged to consider the minority recommendation that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:
UNFITTING CONDITION	VASRD CODE	RATING	
Asthma	6602	30%	
COMBINED	30%